DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

C.C. No. 106/2021

Date of Filing                        Date of Admission                Date of Disposal

12.04.2021                                       21.04.2021                        25.08.2023

P R E S E N T                :- Smt. Sukla Sengupta………………President.

:- Smt. Monisha Shaw.……………… Member.

                                       :- Sri.  Abhijit Basu…………………. Member.

                   JUDGMENT/FINAL ORDER

This petition of complaint is filed by the Complainant U/s 35 of the Consumer Protection Act, 2019.

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The fact of the case in brief is that both the parties are residing and running their business within the jurisdiction of this Commission.

It is the further case of the Complainant that he intends to purchase a flat from the Opposite Parties in order to that he made contact with the O.P No. 1 and 2 who are the land owners of the subject premises and the Opposite Party No. 3 and 4 are the developers of the subject project. The Complainant agreed to purchase the subject flat from the Opposite Party No. 3 measuring about 926 sq.ft. of super built up area at a consideration of Rs. 4,63,000/- @ Rs. 500/- per sq. ft. But no formal agreement for sale had been executed by and between the parties.

It is alleged by the Complainant that the Opposite party No. 3 developer had shown a format of the “agreement for sale” to the Complainant and assured that the same would be executed soon but they did not execute the same rather on 19/05/2014 the developer Biswanath Debnath O.P. No. 3 entered into an agreement with the Complainant on a non-judicial stamp of Rs. 10/- admitting that the Complainant paid the entire consideration money in respect of the subject flat situated in the 2^nd floor, flat no. D and the deed of conveyance of the said flat would be executed and registered in the month of September 2014.

It is alleged by the Complainants that they paid an amount of Rs. 5,10,000/- to the Opposite parties as per oral agreement in the month of March 2006. The first payment was of Rs. 1,30,000/- paid by cash to the Opposite Parties on 27/09/2006 and the second part of Rs. 50,001/-  was paid by cash and third payment was of Rs. 2,50,000/- through cheque being no. 303151 dated 02/12/2006. Thereafter, the Complainant further paid Rs. 30,000/- by cash to the Opposite Parties on 06/02/2007 and the last payment was made on 11/07/2007 of Rs. 50,000/- by cash in total the amount was of Rs. 5,10,000/- paid to the O.P. No. 3 and 4 by the Complainants against money receipt issued by the O.P No. 3 and 4. The relevant money receipts had been annexed herewith .

It is the further case of the Complainant that they got the possession of the subject flat in the month of November-December 2007. Thereafter, on several occasion they approached the O.P. No. 3 for executing the deed of conveyance but the O.P did not pay any heed to their request. The electric meter of the subject flat is running in the name of the Complainant No. 1 and 2 being consumer id 153228566. As the O.P. No. 3 did not pay any heed to their request and did not execute and register the deed of conveyance in respect of the subject flat the Complainants filed a complaint before the Assistant Director, Consumer Affair and Fair Business practices at North 24 Parganas, Maya Bhavan, Barrackpore Road at Nabapally, Barasat, then the O.P No. 3 Biswanath Debnath requested the

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complainant that due to severe financial problem he could not be able to execute and register the deed of conveyance but it would be sorted out shortly, believing him the Complainant had withdrawn the Complainants on 16/10/2017. The O.P No. 3 took Rs. 47,000/- for registration of the deed of conveyance but till date they did not execute and register the deed of conveyance. Hence, the Complainant No. 2 made complaint before the S.P. North 24 Parganas and thereafter having no other alternative they have filed this case before this Commission with a prayer to give direction to the O.Ps for executing and registration of the deed of conveyance in favour of the Complainant in respect of the subject flat and also give direction to them for providing possession certificate to the Complainants. The Complainants also prayed for adjustment of Rs. 47,000/- with applicable rate of interest along with compensation of Rs. 5,00,000/- for deficiency in service, litigation cost of Rs. 50,000/-, Rs. 1,00,000/- for mental pain and agony and Rs. 2,00,000/- for harassment and trauma.

During pendency of this case the original Complainant No. 2 Smt. Rekha Roy has been demised and her legal heirs are substituted in this case and the present Complainants are i.e. Complainant no. (i) (a) and (ii) (b) have been substituted being the legal heirs of deceased Rekha Roy.

From the materials on record it appears that O.P No. 1 and 2 did not contest the case by filing written version. Let the case do run ex-parte against them and O.P No. 3 and 4 have contested the case by filing a written version / objection denying all the materials allegations leveled against them.

It is stated by the contesting O.P No. 3 and 4 that the O.P No. 1 and 2 are the land owners and the O.P No. 3 and 4 are the developers of the property. It is further stated by the O.P No. 3 and 4 in their written version that no agreement for sale was made in between the Complainant and the Opposite Parties for purchasing the subject flat. It is admitted fact that the Complainants have paid total consideration of Rs. 5,10,000/- for the subject flat on different dates against the money receipt issued by the Opposite Parties and the Complainants got possession of the subject flat from the Opposite Parties in the month of August 2007. It is also denied by the Opposite Parties that the O.P No. 3 took extra Rs. 47,000/- from the Complainant to execute the deed of conveyance. It is also admitted fact that in the year 2006 the Complainant No. 1 came to the office of the O.P No. 4 with an intention to purchase one flat and he was convinced to purchase one furnished flat covered area 760 sq.ft. approx. on the second floor of the multistoried building with a fixed rate of Rs. 5,10,000/- and the Complainant was bound to pay Rs. 50,000/- extra for the charge of the transformer and bassbar and proportionate installation charge of the lift. Accordingly, being agreed with the proposal of the O.P No. 3 the Complainant No. 1 paid Rs. 1,30,000/- to the O.P No. 3 on 27/09/2006 out of total consideration of Rs. 5,10,000/- and Rs. 30,000/- on 26/02/2007 and Rs. 50,000/- on 11/07/2007

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against money receipt issued by O.P No. 3. The Complainants were asked to pay the full consideration amount and took the possession of the flat but the complainant No. 1 told that due to his financial problem he was unable to pay the full consideration amount at that time and he will pay the balance amount within  03 months and lastly in the month of July 2007 the Complainant paid the entire consideration amount and got the possession of the subject flat from the O.P. no. 3 in the month of August 2006 and the O.P No. 3 could not be able to make the registration of the subject flat due to latches on the part of the Complainants . it is the further case of the Opposite Parties that they are bound to make the registration of the subject flat in favour of the complainants on payment of extra amo0unt of Rs. 50,000/- for transformer and lift.

          As per O.Ps case the Complainants have no cause of action to file this case thus the case is rejected in limini.

In view of the above stated pleadings the points for considerations are as follows:-

1. Is the case maintainable in its present form and law?
2. Have the Complainants any cause of action to file this case?
3. Are the Complainants consumer within the ambit of C.P. Act, 2019?
4. Is there any deficiency in service on the part of the opposite parties?
5. Is the complainant entitled to get relief as prayed for?

Decision with Reasons

All the points are taken up together for convenience of discussion and to avoid unnecessary repetition.

On careful perusal of the materials on record it appears that this commission has ample territorial as well as pecuniary jurisdiction to try this case. Moreover from the materials on record it appears that the cause of action arose on 02.12.2006 when the present Complainants paid part consideration money and thereafter it was continuing till filing of this case and the complainant has filed this case on 12.04.2021 after making several requests to the Opposite Parties to make registration of the flat. So, it is well known to us that cause of action is bundle of facts and it is continued till filing of this case from which it is held that the case is well within the period of limitation. It is admitted fact that the Opposite Parties received a sum of Rs. 5,10,000/- from the Complainant No. 1 towards the consideration money of the subject flat measuring about 760 sq.ft. approx. covered area on the 2^nd floor of the multistoried building in question and the demanded extra charge of Rs. 50,000/- for installation charge of transformer lift.

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So as and when the consideration amount is received by the Opposite Parties specially O.P no. 3 from the Complainant for the subject flat, it is settled that the Complainant is a consumer within the ambit of Consumer Protection Act, 2019.

Now lets us see whether there any sort of deficiency of service on the part of the Opposite Parties or not.

In this case admittedly no agreement for sale has been executed by and between the parties at the time of purchasing the subject flat, but the contesting Opposite Parties Nos. 3 and 4 admitted the fact in their written version that the Complainants paid a sum of Rs. 5,10,000/- to the Opposite Party No. 3 towards the consideration money of the subject flat and the Opposite Parties issued money receipt to that effect which is available in the case record as filed by the Complainant along with his petition of complaint. Such admission of the Opposite Parties and also the evidence of the Complainant proved that the Complainant is a consumer within the ambit of Consumer Protection Act, 2019 and the Opposite Parties are the service providers.

It is also admitted fact that though the Opposite Parties have handed over the possession of the subject flat to the Complainants in the year of 2006-2007 but till date they did not make the registration of the flat in question by executing a deed of conveyance in favour of the Complainant and they demanded that the Complainant have to pay Rs. 50,000/- more for the charge of installation of transformer and lift. On the contrary it is the claim of the Complainant no. 1 that the valuation of the flat in question measuring about 926 sq.ft. of super built up area and the consideration money was of Rs. 4,63,000/- in total @ Rs. 500/- per sq.ft. but the contesting Opposite Parties denied the same by stating that the valuation of the flat in question was of Rs. 5,10,000/-. In this case without having any agreement for sale the Complainant could not be able to establish that the valuation of the subject flat was of Rs. 4,63,000/- because he paid the consideration money of Rs. 5,10,000/- by stating that it was the full consideration of the subject flat from which it is held by this Commission that the valuation of the subject flat was of Rs. 5,10,000/- as paid by the Complainant so question of payment of Rs. 47,000/- towards registration fees of the flat has not been established.

However, in view of the discussion made above it is crystal clear that the Complainant paid the full consideration of the subject flat and got the possession of the same in the year of 2006-2007 but till date the Opposite Parties failed to register the same in favour of the Complainant by executing the deed of conveyance and also failed to hand over the Possession Certificate and Completion Certificate to the Complainant.

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Such conduct of the Opposite Party proved that there is / was sufficient deficiency in service on the part of the Opposite Parties, which caused harassment, negligence, mental pain and agony to the Complainant. For such reason the O.Ps are liable to pay compensation to the Complainant.

In view of the discussion made above it is held by this Commission that the Complainants could be able to prove the case beyond all reasonable doubt and are entitled to get the relief as prayed for.

All the points of consideration are decided favourably to the Complainant.

The case is properly stamped.

Hence ,

ordered,

That the case C.C./106/2021 be and the same is decreed ex-parte against Opposite Party NoS. 1 & 2 and on contest against the Opposite Party Nos. 3 & 4 with cost of Rs. 5,000/-.

The Complainants do get the decree as prayed for.

The Opposite Parties are directed to make registration of the subject flat by executing the deed of conveyance in favour of the Complainants on payment of the registration fees by the Complainants within 45 days from the date of this order.

The Opposite Parties are directed to provide the Possession Certificate and Completion Certificate in respect of the subject flat to the Complainants within 45 days from the date of this order.

The Opposite Parties are directed to give compensation of Rs. 25,000/- to the Complainants for negligence, harassment, mental pain and agony along with litigation cost of Rs. 5,000/- either jointly or severally within 45 days from this date of order.

If the Opposite Parties failed to comply the decree within the stipulated period the Complainants are at liberty to execute the same as per law.

Let a plain copy of this order be given to the parties free of cost as per CPR, 2005.

Dictated and Corrected by me

President

Member                                            Member                                  President